January 30, 2007, Introduced by Reps. Pearce, Rick Jones, Caul, Hildenbrand, Steil, Proos, Pastor, Brandenburg, Dean, LaJoy, Green and Sheen and referred to the Committee on Families and Children's Services.
A bill to amend 1970 PA 91, entitled
"Child custody act of 1970,"
by amending sections 7a, 7b, and 11 (MCL 722.27a, 722.27b, and
722.31), section 7a as amended by 1996 PA 19, section 7b as amended
by 2006 PA 353, and section 11 as added by 2000 PA 422.
THE PEOPLE OF THE STATE OF MICHIGAN ENACT:
Sec. 7a. (1) Parenting time shall be granted in accordance
with the best interests of the child. It is presumed to be in the
best interests of a child for the child to have a strong
relationship with both of his or her parents. Except as otherwise
provided in this section, parenting time shall be granted to a
parent in a frequency, duration, and type reasonably calculated to
promote a strong relationship between the child and the parent
granted parenting time.
(2) If the parents of a child agree on parenting time terms,
the court shall order the parenting time terms unless the court
determines on the record by clear and convincing evidence that the
parenting time terms are not in the best interests of the child.
(3) A child has a right to parenting time with a parent unless
it is shown on the record by clear and convincing evidence that it
would endanger the child's physical, mental, or emotional health.
(4) Notwithstanding other provisions of this act, if a
proceeding regarding parenting time involves a child who is
conceived as the result of acts for which 1 of the child's
biological parents is convicted of criminal sexual conduct as
provided in sections 520a to 520e and 520g of the Michigan penal
code,
Act No. 328 of the Public Acts of 1931, being sections
750.520a
to 750.520e and 750.520g of the Michigan Compiled Laws
1931 PA 328, MCL 750.520a to 750.520e and 750.520g, the court shall
not grant parenting time to the convicted biological parent. This
subsection does not apply to a conviction under section 520d(1)(a)
of
Act No. 328 of the Public Acts of 1931, being section 750.520d
of
the Michigan Compiled Laws the
Michigan penal code, 1931 PA 328,
MCL 750.520d. This subsection does not apply if, after the date of
the conviction, the biological parents cohabit and establish a
mutual custodial environment for the child.
(5) Notwithstanding other provisions of this act, if an
individual is convicted of criminal sexual conduct as provided in
sections
520a to 520e and 520g of Act No. 328 of the Public Acts of
1931
the Michigan penal code, 1931
PA 328, MCL 750.520a to 750.520e
and 750.520g, and the victim is the individual's child, the court
shall not grant parenting time with that child or a sibling of that
child to that individual, unless both the child's other parent and,
if the court considers the child or sibling to be of sufficient age
to express his or her desires, the child or sibling consent to the
parenting time.
(6) The court may consider the following factors when
determining the frequency, duration, and type of parenting time to
be granted:
(a) The existence of any special circumstances or needs of the
child.
(b) Whether the child is a nursing child less than 6 months of
age, or less than 1 year of age if the child receives substantial
nutrition through nursing.
(c) The reasonable likelihood of abuse or neglect of the child
during parenting time.
(d) The reasonable likelihood of abuse of a parent resulting
from the exercise of parenting time.
(e) The inconvenience to, and burdensome impact or effect on,
the child of traveling for purposes of parenting time.
(f) Whether a parent can reasonably be expected to exercise
parenting time in accordance with the court order.
(g) Whether a parent has frequently failed to exercise
reasonable parenting time.
(h) The threatened or actual detention of the child with the
intent to retain or conceal the child from the other parent or from
a third person who has legal custody. A custodial parent's
temporary residence with the child in a domestic violence shelter
shall not be construed as evidence of the custodial parent's intent
to retain or conceal the child from the other parent.
(i) Any other relevant factors.
(7) Parenting time shall be granted in specific terms if
requested by either party at any time.
(8) A parenting time order may contain any reasonable terms or
conditions that facilitate the orderly and meaningful exercise of
parenting time by a parent, including 1 or more of the following:
(a) Division of the responsibility to transport the child.
(b) Division of the cost of transporting the child.
(c) Restrictions on the presence of third persons during
parenting time.
(d) Requirements that the child be ready for parenting time at
a specific time.
(e) Requirements that the parent arrive for parenting time and
return the child from parenting time at specific times.
(f) Requirements that parenting time occur in the presence of
a third person or agency.
(g) Requirements that a party post a bond to assure compliance
with a parenting time order.
(h) Requirements of reasonable notice when parenting time will
not occur.
(i) Any other reasonable condition determined to be
appropriate in the particular case.
(9) During the time a child is with a parent to whom parenting
time has been awarded, that parent shall decide all routine matters
concerning the child.
(10) Prior to entry of a temporary order, a parent may seek an
ex parte interim order concerning parenting time. If the court
enters an ex parte interim order concerning parenting time, the
party on whose motion the ex parte interim order is entered shall
have a true copy of the order served on the friend of the court and
the opposing party.
(11) If the opposing party objects to the ex parte interim
order, he or she shall file with the clerk of the court within 14
days after receiving notice of the order a written objection to, or
a motion to modify or rescind, the ex parte interim order. The
opposing party shall have a true copy of the written objection or
motion served on the friend of the court and the party who obtained
the ex parte interim order.
(12) If the opposing party files a written objection to the ex
parte interim order, the friend of the court shall attempt to
resolve the dispute within 14 days after receiving it. If the
matter cannot be resolved, the friend of the court shall provide
the opposing party with a form motion and order with written
instructions for their use in modifying or rescinding the ex parte
order without assistance of counsel. If the opposing party wishes
to proceed without assistance of counsel, the friend of the court
shall schedule a hearing with the court that shall be held within
21 days after the filing of the motion. If the opposing party files
a motion to modify or rescind the ex parte interim order and
requests a hearing, the court shall resolve the dispute within 28
days after the hearing is requested.
(13) An ex parte interim order issued under this section shall
contain the following notice:
NOTICE:
1. You may file a written objection to this order or a motion
to modify or rescind this order. You must file the written
objection or motion with the clerk of the court within 14 days
after you were served with this order. You must serve a true copy
of the objection or motion on the friend of the court and the party
who obtained the order.
2. If you file a written objection, the friend of the court
must try to resolve the dispute. If the friend of the court cannot
resolve the dispute and if you wish to bring the matter before the
court without the assistance of counsel, the friend of the court
must provide you with form pleadings and written instructions and
must schedule a hearing with the court.
(14) A parent may request electronic communication in addition
to parenting time under this section. If a parent requests
electronic communication under this section, the court may grant
that parent a reasonable amount of electronic communication while
the child is in the other parent's care if the court finds both of
the following:
(a) The equipment for providing the type of electronic
communication requested and the service for utilizing that
equipment is available to both parents.
(b) The electronic communication requested is in the best
interests of the child.
(15) A court shall not use electronic communication as a
substitute for parenting time under this section.
(16) The amount of electronic communication between a parent
and child shall not be used as a factor in the calculation of child
support.
(17) If a parenting time order contains a requirement that
parenting time occur in the presence of a third person or agency,
any electronic communication granted under this section shall also
occur in the presence of a third person or agency.
(18) As used in this section, "electronic communication" means
communication between a parent and his or her child by telephone,
electronic mail, instant messaging, video conferencing, webcam, or
any other electronic communication device.
Sec. 7b. (1) A child's grandparent may seek a grandparenting
time or electronic communication order under 1 or more of the
following circumstances:
(a) An action for divorce, separate maintenance, or annulment
involving the child's parents is pending before the court.
(b) The child's parents are divorced, separated under a
judgment of separate maintenance, or have had their marriage
annulled.
(c)
The child's parent who is a child of the grandparents
grandparent is deceased.
(d) The child's parents have never been married, they are not
residing in the same household, and paternity has been established
by the completion of an acknowledgment of parentage under the
acknowledgment of parentage act, 1996 PA 305, MCL 722.1001 to
722.1013, by an order of filiation entered under the paternity act,
1956 PA 205, MCL 722.711 to 722.730, or by a determination by a
court of competent jurisdiction that the individual is the father
of the child.
(e) Except as otherwise provided in subsection (13), legal
custody of the child has been given to a person other than the
child's parent, or the child is placed outside of and does not
reside in the home of a parent.
(f) In the year preceding the commencement of an action under
subsection (3) for grandparenting time, the grandparent provided an
established custodial environment for the child as described in
section 7, whether or not the grandparent had custody under a court
order.
(2) A court shall not permit a parent of a father who has
never been married to the child's mother to seek an order for
grandparenting time or electronic communication under this section
unless the father has completed an acknowledgment of parentage
under the acknowledgment of parentage act, 1996 PA 305, MCL
722.1001 to 722.1013, an order of filiation has been entered under
the paternity act, 1956 PA 205, MCL 722.711 to 722.730, or the
father has been determined to be the father by a court of competent
jurisdiction. The court shall not permit the parent of a putative
father to seek an order for grandparenting time or electronic
communication unless the putative father has provided substantial
and regular support or care in accordance with the putative
father's ability to provide the support or care.
(3) A grandparent seeking a grandparenting time or electronic
communication order shall commence an action for grandparenting
time, as follows:
(a) If the circuit court has continuing jurisdiction over the
child, the child's grandparent shall seek a grandparenting time or
electronic communication order by filing a motion with the circuit
court in the county where the court has continuing jurisdiction.
(b) If the circuit court does not have continuing jurisdiction
over the child, the child's grandparent shall seek a grandparenting
time or electronic communication order by filing a complaint in the
circuit court for the county where the child resides.
(4) All of the following apply to an action for grandparenting
time under subsection (3):
(a) The complaint or motion for grandparenting time or
electronic communication filed under subsection (3) shall be
accompanied by an affidavit setting forth facts supporting the
requested order. The grandparent shall give notice of the filing to
each person who has legal custody of, or an order for parenting
time with, the child. A party having legal custody of the child may
file an opposing affidavit. A hearing shall be held by the court on
its own motion or if a party requests a hearing. At the hearing,
parties submitting affidavits shall be allowed an opportunity to be
heard.
(b) In order to give deference to the decisions of fit
parents, it is presumed in a proceeding under this subsection that
a fit parent's decision to deny grandparenting time or electronic
communication does not create a substantial risk of harm to the
child's mental, physical, or emotional health. To rebut the
presumption created in this subdivision, a grandparent filing a
complaint or motion under this section must prove by a
preponderance of the evidence that the parent's decision to deny
grandparenting time or electronic communication creates a
substantial risk of harm to the child's mental, physical, or
emotional health. If the grandparent does not overcome the
presumption, the court shall dismiss the complaint or deny the
motion.
(c) If a court of appellate jurisdiction determines in a final
and nonappealable judgment that the burden of proof described in
subdivision (b) is unconstitutional, a grandparent filing a
complaint or motion under this section must prove by clear and
convincing evidence that the parent's decision to deny
grandparenting time or electronic communication creates a
substantial risk of harm to the child's mental, physical, or
emotional health to rebut the presumption created in subdivision
(b).
(5) If 2 fit parents sign an affidavit stating that they both
oppose an order for grandparenting time or electronic
communication, the court shall dismiss a complaint or motion
seeking an order for grandparenting time or electronic
communication filed under subsection (3). This subsection does not
apply if 1 of the fit parents is a stepparent who adopted a child
under the Michigan adoption code, chapter X of the probate code of
1939, 1939 PA 288, MCL 710.21 to 710.70, and the grandparent
seeking the order is the natural or adoptive parent of a parent of
the child who is deceased or whose parental rights have been
terminated.
(6) If the court finds that a grandparent has met the standard
for rebutting the presumption described in subsection (4), the
court shall consider whether it is in the best interests of the
child to enter an order for grandparenting time or electronic
communication. If the court finds by a preponderance of the
evidence that it is in the best interests of the child to enter a
grandparenting time or electronic communication order, the court
shall enter an order providing for reasonable grandparenting time
of
or electronic communication
with the child by the grandparent by
general or specific terms and conditions. In determining the best
interests of the child under this subsection, the court shall
consider all of the following:
(a) The love, affection, and other emotional ties existing
between the grandparent and the child.
(b) The length and quality of the prior relationship between
the child and the grandparent, the role performed by the
grandparent, and the existing emotional ties of the child to the
grandparent.
(c) The grandparent's moral fitness.
(d) The grandparent's mental and physical health.
(e) The child's reasonable preference, if the court considers
the child to be of sufficient age to express a preference.
(f) The effect on the child of hostility between the
grandparent and the parent of the child.
(g) The willingness of the grandparent, except in the case of
abuse or neglect, to encourage a close relationship between the
child and the parent or parents of the child.
(h) Any history of physical, emotional, or sexual abuse or
neglect of any child by the grandparent.
(i) Whether the parent's decision to deny, or lack of an offer
of, grandparenting time or electronic communication is related to
the child's well-being or is for some other unrelated reason.
(j) Whether the equipment for providing the type of electronic
communication requested and the service for using the equipment is
available to the parent of the child.
(k) (j)
Any other factor relevant to the
physical and
psychological well-being of the child.
(7) If the court has determined that a grandparent has met the
standard for rebutting the presumption described in subsection (4),
the court may refer that grandparent's complaint or motion for
grandparenting time or electronic communication filed under
subsection (3) to domestic relations mediation as provided by
supreme court rule. If the complaint or motion is referred to the
friend of the court mediation service and no settlement is reached
through friend of the court mediation within a reasonable time
after the date of referral, the complaint or motion shall be heard
by the court as provided in this section.
(8) A grandparent may not file more than once every 2 years,
absent a showing of good cause, a complaint or motion under
subsection (3) seeking a grandparenting time or electronic
communication order. If the court finds there is good cause to
allow a grandparent to file more than 1 complaint or motion under
this section in a 2-year period, the court shall allow the filing
and shall consider the complaint or motion. Upon motion of a
person, the court may order reasonable attorney fees to the
prevailing party.
(9) The court shall not enter an order prohibiting an
individual who has legal custody of a child from changing the
domicile of the child if the prohibition is primarily for the
purpose of allowing a grandparent to exercise the rights conferred
in a grandparenting time or electronic communication order entered
under this section.
(10) A grandparenting time or electronic communication order
entered under this section does not create parental rights in the
individual or individuals to whom grandparenting time or electronic
communication rights are granted. The entry of a grandparenting
time or electronic communication order does not prevent a court of
competent jurisdiction from acting upon the custody of the child,
the parental rights of the child, or the adoption of the child.
(11) A court shall not modify or terminate a grandparenting
time or electronic communication order entered under this section
unless it finds by a preponderance of the evidence, on the basis of
facts that have arisen since entry of the grandparenting time or
electronic communication order or were unknown to the court at the
time it entered that order, that a change has occurred in the
circumstances of the child or his or her custodian and that a
modification or termination of the existing order is necessary to
avoid creating a substantial risk of harm to the mental, physical,
or emotional health of the child. A court modifying or terminating
a grandparenting time or electronic communication order under this
subsection shall include specific findings of fact in its order in
support of its decision.
(12) The court shall make a record of its analysis and
findings under subsections (4), (6), (8), and (11), including the
reasons for granting or denying a requested grandparenting time or
electronic communication order.
(13) Except as otherwise provided in this subsection, adoption
of a child or placement of a child for adoption under the Michigan
adoption code, chapter X of the probate code of 1939, 1939 PA 288,
MCL 710.21 to 710.70, terminates the right of a grandparent to
commence an action for grandparenting time with that child.
Adoption of a child by a stepparent under the Michigan adoption
code, chapter X of the probate code of 1939, 1939 PA 288, MCL
710.21 to 710.70, does not terminate the right of the parent of a
deceased parent of the child to commence an action for
grandparenting time with that child.
(14) As used in this section, "electronic communication" means
communication between a grandparent and his or her grandchild by
telephone, electronic mail, instant messaging, video conferencing,
webcam, or any other electronic communication device.
Sec. 11. (1) A child whose parental custody is governed by
court order has, for the purposes of this section, a legal
residence with each parent. Except as otherwise provided in this
section, a parent of a child whose custody is governed by court
order shall not change a legal residence of the child to a location
that is more than 100 miles from the child's legal residence at the
time of the commencement of the action in which the order is
issued.
(2) A parent's change of a child's legal residence is not
restricted by subsection (1) if the other parent consents to, or if
the court, after complying with subsection (4), permits, the
residence change. This section does not apply if the order
governing the child's custody grants sole legal custody to 1 of the
child's parents.
(3) This section does not apply if, at the time of the
commencement of the action in which the custody order is issued,
the child's 2 residences were more than 100 miles apart. This
section does not apply if the legal residence change results in the
child's 2 legal residences being closer to each other than before
the change.
(4) Before permitting a legal residence change otherwise
restricted by subsection (1), the court shall consider each of the
following factors, with the child as the primary focus in the
court's deliberations:
(a) Whether the legal residence change has the capacity to
improve the quality of life for both the child and the relocating
parent.
(b) The degree to which each parent has complied with, and
utilized his or her time under, a court order governing parenting
time with the child, and whether the parent's plan to change the
child's legal residence is inspired by that parent's desire to
defeat or frustrate the parenting time schedule.
(c) The degree to which the court is satisfied that, if the
court permits the legal residence change, it is possible to order a
modification of the parenting time schedule and other arrangements
governing the child's schedule in a manner that can provide an
adequate basis for preserving and fostering the parental
relationship between the child and each parent; and whether each
parent is likely to comply with the modification.
(d) The extent to which the parent opposing the legal
residence change is motivated by a desire to secure a financial
advantage with respect to a support obligation.
(e) Domestic violence, regardless of whether the violence was
directed against or witnessed by the child.
(5) Each order determining or modifying custody or parenting
time of a child shall include a provision stating the parent's
agreement as to how a change in either of the child's legal
residences will be handled. If such a provision is included in the
order and a child's legal residence change is done in compliance
with that provision, this section does not apply. If the parents do
not agree on such a provision, the court shall include in the order
the following provision: "A parent whose custody or parenting time
of a child is governed by this order shall not change the legal
residence of the child except in compliance with section 11 of the
"Child Custody Act of 1970", 1970 PA 91, MCL 722.31.".
(6) If this section applies to a change of a child's legal
residence and the parent seeking to change that legal residence
needs to seek a safe location from the threat of domestic violence,
the parent may move to such a location with the child until the
court makes a determination under this section.
(7) The court may not use the availability of electronic
communication under section 7a to justify or support a change of
legal residence under this section.